Mr F Santos v POD Digital Marketing Limited Heard: in Leicester — 2022

Mr F Santos worked for POD Digital Marketing Limited as a Data Analyst from 29 October 2018 until his employment ended on 10 July 2020. Earlier claims for breach of contract, unlawful deduction from wages and holiday pay were withdrawn and dismissed at a preliminary hearing on 18 December 2020. The final hearing concerned automatic unfair dismissal under sections 100(d) and (e) ERA 1996, automatic selection for redundancy under section 105 ERA 1996, direct discrimination because of sex and sexual orientation, and harassment related to sexual orientation.

The tribunal held that the complaints based on Colin Craig's WhatsApp message of 23 March 2020 were out of time. It found that the message allegation did not form part of a continuing act of discrimination, because the later refusal to permit home working and the removal of the claimant's photograph were not unlawful discrimination. The tribunal also refused to extend time on the just and equitable basis, noting that the claimant did not complain about the message until his grievance on 25 June 2020 and had given no compelling reason for the delay.

On the automatic unfair dismissal claim, the tribunal accepted that the claimant was concerned about Covid-19, but found that his refusal to return to the office was driven by childcare arrangements rather than a belief in serious and imminent danger arising in the workplace. In the alternative, it held that any belief in workplace danger was not objectively reasonable because the respondent had introduced Covid-specific rules and a risk assessment and shared them with staff. The tribunal found that the dismissal was instead caused by a reduction in business and PPC work, together with the claimant's refusal to return to the office; it added that, had ordinary unfair dismissal been in issue, the dismissal would have been procedurally unfair because there was no consultation and the redundancy policy was not followed.

The section 105 claim also failed because the claimant was the only employee in the PPC department and there was no comparable pool or similar employee who was not dismissed. The sex discrimination claim failed because Lucy was not an appropriate comparator and there was no evidence that the refusal to allow home working was because of sex. The sexual orientation discrimination claim also failed: the tribunal accepted that the claimant's photograph was removed from the respondent's website while he was in notice, and the majority treated that as a detriment, but all members found no evidence that the removal was because of sexual orientation and accepted the respondent's explanation that several former employees' photographs were removed while the website was being tidied up.